Authorizing Suspension of Applicability of Employment Authorization Requirements in Emergent Circumstances for Certain F-1 Students [63 FR 31872] [FR 40-98]

DOCUMENT NUMBER: FR 40-98

FEDERAL REGISTER CITE: 63 FR 31872

DATE OF PUBLICATION: June 10, 1998

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 1914-98]

RIN 1115-AF15

Authorizing Suspension of Applicability of Employment Authorization Requirements in Emergent Circumstances

for Certain F-1 Students

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule amends the regulations of the Immigration and Naturalization Service (Service) that apply to nonimmigrant aliens who are admitted to the United States in F-1 student classification for duration of status under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (Act), and who are seeking either on-campus employment or authorization for off-campus employment. The rule allows the Commissioner, by notice in the Federal Register , to permit specified F-1 students to engage in on-campus employment for more than 20 hours per week and to suspend the applicability of the eligibility requirements for off-campus employment authorization, where emergent circumstances exist. F-1 students who find it necessary to reduce their normal course of study in order to engage in this specially authorized employment will be considered to be maintaining status and pursuing a full course of study. This interim rule is necessary to provide a means for t he Service to take immediate action when emergency situations arise.

DATES: Effective date : This interim rule is effective June 10, 1998.

Comment date : Written comments must be submitted on or before August 10, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1914-98 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Maurice R. Berez, Adjudications Officer, Office of Adjudications, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

Current regulations at 8 CFR 214.2(f)(8) permit F-1 students to engage in on-campus or off-campus employment while pursuing their studies in the United States as long as certain requirements are met. The regulations provide no flexibility in these requirements. Crises may arise, however, that warrant suspension of some or all of the requirements for certain students. An amendment to the current regulations is necessary to provide the Commissioner a means to institute immediate measures for affected students in case of a crisis. The most expedient means is by notice in the Federal Register . This interim rule amends the regulations to provide such a procedure with respect to on-campus employment, off-campus employment authorization, duration of status, and full course of study.

On-Campus Employment

Under the current regulations for on-campus employment at 8 CFR 214.2(f)(9)(i), F-1 students may work no more than 20 hours per week when school is in session. Current regulations provide no exceptions to thIS limitation. This rule amends the regulations for on-campus employment to permit the Commissioner, by notice in the Federal Register , to allow specified F-1 students to work on-campus more than 20 hours per week for a temporary period where an emergency situation has arisen. Before a student may engage in such employment, the student must demonstrate to the Designated School Official (DSO) at the student's school that the employment is necessary to avoid severe economic hardship resulting from the emergency, and the DSO must notate the student's Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, in accordance w ith the Federal Register document.

Off-Campus Employment Authorization

Current regulations at 8 CFR 214.2(f)(9)(ii) provide that an F-1 student may be authorized to work off-campus where: the student has been in F-1 status for one full academic year; the student is in good academic standing and is carrying a "full course of study;" the student demonstrates that the employment will not interfere with his or her ability to carry a full course of study; and the student demonstrates that he or she must work to avoid severe economic hardship due to unforeseen circumstances beyond t he student's control. Just as with on-campus employment, a student granted off-campus employment authorization may work no more than 20 hours per week when school is in session. The student may work full-time during holidays or school vacations. Section 214.2(f)(9)(ii)(A) of the current regulations provides for automatic termination of employment authorization where the student fails to maintain his or her F-1 status as set forth in 8 CFR 214.2(f)(5).

To provide the necessary flexibility to address unforeseeable emergencies, this rule amends the regulations to allow the Commissioner, by notice in the Federal Register , to suspend the applicability of some or all of the requirements for off-campus employment authorization for specified F-1 students where an emergency situation has arisen calling for this action.

Duration of Status and Full Course of Study

To maintain F-1 status, all F-1 students must pursue a full course of study. The time during which an F-1 student is pursuing a full course of study is called "duration of status." See 8 CFR 214.2(f)(5). An F-1 student who pursues less than a full course of study and violates his or her status can seek reinstatement if he or she meets the requirements of 8 CFR 214.2(f)(16). Where the Commissioner has exercised her authority established by this interim rule to suspend the applicability of the requirements for on-campus and off-campus employment authorization by notice in the Federal Register , affected F-1 students may, but are not required to, pursue less than their normal course of study in order to meet their financial needs by accepting the authorized employment. So that these students will not be considered to have violated their status, this interim rule amends the regulations at 8 CFR 214.2(f)(5) to provide that affected F-1 students carrying a reduced course load will be considered to be in status during the authorized employment, as long as the student remains registered for a minimum course load, which will be specified in the Federal Register document. Under the rule, in no event may the minimum course load be less than 6 semester or quarter hours of instruction per academic term if the student is at the undergraduate level or 3 semester or quarter hours of instruction per academic term if the student is at the graduate level. In addition, the rule amends the regulations defining "full course of study" at 8 CFR 214.2(f)(6) to providethat affected F-1 students carrying a reduced course load will be deemed to be engaged in a full course of study during the authorized employment, as long as the student remains registered for a minimum course load, which may not be less than the number of semester or quarter hours specified in the Federal Register document. Because affected F-1 students who must reduce their course load will be considered to be in status, they do not need to request reinstatement to return to a full course of study.

Good Cause Exception

The Service's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the "good cause" exception found at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). This rule permits the Commissioner to suspend the application of certain regulatory requirements where an emergency situation arises calling for such action. Immediate implementation is necessary because emergency circumstances have, in fact, arisen that require immediate action by the Service. A number of As ian countries are experiencing an extreme economic crisis as a result of a sharp drop in the value of their currencies. This crisis will have a severe impact on the United States' national interest. Thailand, Indonesia, Malaysia, South Korea, and the Philippines are among the hardest hit by this crisis.

There are approximately 80,000 nationals currently in the United States whose means of financial support comes from one of these five countries. As a result of the crisis in the five countries, many of these students may not be able to afford to remain in school or meet living expenses and will be forced to leave the United States. The President and the Secretary of State have requested the Government to assist in addressing this crisis in order to further important foreign policy interests. In light of thi s crisis, the Service must implement a mechanism to aid affected students immediately. In this issue of the Federal Register , the Service is simultaneously issuing a document with this interim rule to notify the public of the suspension of applicability of certain requirements under 8 CFR 214.2(f)(9) for F-1 students whose means of financial support comes from South Korea, Thailand, Indonesia, Malaysia and the Philippines.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with 5 U.S.C. 605(b), has reviewed this interim rule and, by approving it, certifies that this rule does not have a significant economic impact on a substantial number of small entities since this rule affects individual aliens, not small entities as that term is defined in 5 U.S.C. 601(b).

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, it has been submitted to the Office of Management and Budget for review.

Executive Order 12612

The regulation adopted herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.